Page:The New International Encyclopædia 1st ed. v. 12.djvu/835

* MAlICIOtrS PROSECUTION. 743 MALIGNANT DISEASE. probable cause. In a few jurisdictions it has been made a criminal offense by statute. It is the right of eveiy one to set the law in motion for the punishment of criminal offenses or for the eiifurcenicnt of his individual claims. The courts have ordered that "public policy requires that ]]arties may freely enter court to settle their rlcvances, and that they may do this without uiinent exposure to a suit for damages in ea>e of an adverse decision by judge or jury." In order to recover, the 2ih^intiff must estab- lish by proof: (1) That the prosecution of which he complains was instituted by the de- fendant; (2) that it has terminated in plaintiff's favor; (3) that the defendant acted without probable cause; (4) that he acted maliciously; and (.5) that plaintiff' was damaged by the prose- cution. If he fails to establish any of these fun- damental facts, he loses his .suit. While it niu.st be shown that the defendant was the one who set the original prosecution afoot, it is not necessary to prove that he at- tended to it personally. He may have set the law iu motion through an agent. Hence a cor- poration, a joint-stock company, or a partnership, or any principal may be liable for a malicious prosecution iu which only an agent figured per- sonally. The reason for requiring a termination of the original suit in the present plaintiff's favor, be- fore allowing him to sue for malicious prosecu- i JMii, is that it would not be consistent with the i rinciples on which law is admini.stcred for an- oilicr court, not being a court of appeal, to hold tliat a wrong decision was made in the original case. To prevent unnecessary litigation, the original defendant must try the issue tendered him in that ca.se, and must then establish the groundlessness of the prosecution. Of cour.se, tliis strict rule does not apply to a proceeding which, from its nature, does not admit of such a trial — for example, the search of one's house' under a warrant for the discovery of stolen prop- erty or incriminating evidence. No issue is here tendered for trial. If the search is fruitless aiKl was instituted without probable cause and with malice, an action is maintainable. Where, however, the original defendant has an oppor- tunity to establish the groundlessness of the orig- inal proceeding, he is bound to show a legal end- ing of that proceeding in his favor. Ordinarily, it is not dilTicnlt to say when such an ending has been reached. A final decision of the trial court or magistrate upon the merits is of course a legal determination; so, as a rule, is the voluntary abandonment of the original prose- cution, without the defendant's request and eon- sent. If the original proceeding honestly terminated adversely to the defendant, the question of prob- able cause is settled against him. Even though he obtains a reversal of the judgment, and on n new trial the decision is in his favor, the con- clusive effect of the first decision remains. At least such is the prevailing view, unless the origi- nal decision was obtained fraudulently; although some courts treat an adverse decision which has been reversed on appeal as primn faeic evidence only of probable cause. On the other hand, a termination of the original prosecution in the de- fendant's favor does not prove a want of probable cause for its institution. Whether the original prosecutor set the law in motion without prob- k able cause is a mixed question of law and of fact. The truth of the circumstances alleged to show probable excuse is a question of fact which is to be determined by the jury; but whether, admit- ting their truth, they amoiuit to probable cause, is a question of law for the court. Frequently the person sued for malicious prosecution proves that the original proceeding was taken upon the advice of counsel. In order to shield himself beliind such advice, he must show not only that he consulted reputable and capable counsel, but that the advice was based upon a full and iionest disclosure of all the material facts within his knowledge and belief. Probable cause having been proved, the plaintiff must prove malice and damage. Jlaliee. in this connection, means something more than the inten- tional doing of a wrongful act without legal ex- cuse. It is not a legal fiction. It involves the idea of a malevolent or sinister purpose; not necessarily spite or hatred against an individual, but at least an improper or evil motive in setting the law iu motion. Its existence is a question for the jury, and it may be inferred from a want of probable cause; but the jury is not bound to draw that inference even though the groundless- ness of the prosecution is admitted. Damage may be shown by proving that it was a criminal prosecution, or, it being a civil suit, that it was attended by an arrest of his person or seizure of his property, or scandal to his repu- tation (as in bankruptcy proceedings or an in- quirj' into his sanity), and in these cases he need giA-e no evidence of special loss. "Such a prose- cution necessarily and manifestly imparts dam- ages." But if it was a civil suit, unattended by any of the incidents above referred to, he must show that it caused him special loss or harm in order to recover. Even though he is able to show this, he will be defeated in England and in many of the States, upon the doctrine that "in con- templation of law the defendant who is unreason- ably sued in a civil action is sufficiently indemni- fied by a judgment in his favor which gives costs against his opponent." This legal fiction is los- ing favor. Consult Xewel, Malicious Prusecu- lion. False Imprisonment, and Ahuse of Process (1892), and the authorities referred to under Tort, such as Pollock, Law of Torts (7th ed., London. 1003). MALIGNANT CATARRH. An infectious disease of cattle which affects mainly the res- jiiratory and alimentary tracts. It usually oc- curs in an enzootic form and seems to ]jersist in certain localities. The period of incubation is about three weeks. The disease ordinarily at- tacks you7ig. vigorous annuals, and begins with a chill followed by high fever. The eyelids be- come swollen and the tear formation is abundant. The eyes are unusually sensitive to the light. There are thick bloody discharges from the nose and mouth. The mortality from the disease ranges from .50 per cent, to 00 per cent., death occurring in from one to four weeks. There is no good specific treatment for the disease. The treatment should be s;Tnptomatic. Infected ani- mals should be isolated and stables disinfected. MALIGNANT DISEASE. A certain dis- ease or type of disease which tends almost in- evitably to a fatal issue. The tumors character- ized as malignant are cancer and sarcoma. Some epidemic diseases assume, at certain times and